from the encouraging-rights-for-the-public-would-do-what-now? dept

We've been covering the latest efforts by copyright maximalists to screw over the blind in the decades-in-waiting WIPO treaty process to help them get more access to content by creating clear carveouts in copyright law that protect the rights of the blind and of those who are transforming works for the blind. Basically, it's about protecting the fundamental rights of the blind to have access to information that others have because they have sight. This process has gone on for ages, in large part because copyright maximalists absolutely fear the idea that anyone might put forth an agreement that ever so slightly pushes back on the maximalist agenda.

The amazing thing is that they're not even subtle about this. Last year, we noted that in a video by Jamie Love showing Alan Adler, a VP for the Association of American Publishers, Adler was quite upfront about the fact that they're against this agreement for the blind not because of the blind folks who need the help, but rather because they're afraid of even opening the door to expanding things like fair use -- which he claims is some sort of attack on copyright.

Jamie Love has now called our attention to a letter sent by the Intellectual Property Owners Association (IPO) to Teresa Stanek Rea, the Acting Under Secretary of Commerce for Intellectual Property and the Director of the USPTO, concerning this treaty, in which the IPO is equally explicit that its main complaint is any expansion of user rights like fair use is simply not acceptable. From the full letter, which is also embedded below:

IPO supports international action that addresses the needs of the visually impaired in
meaningful ways, but we are concerned about the VIP treaty as currently drafted,
focused exclusively on L/Es and not on the rights holders whose copyrights are at stake.
We are also concerned about the potentially negative, precedential effect that a one-sided, exceptions-focused VIP treaty may have on parallel developments at WIPO and
in other international negotiations

This is all sorts of hilarious. After all, the folks at IPO have long supported incredibly one-sided agreements that only focus on the expansion of copyright, and they're among those who have actively fought any attempt to include user rights (they prefer to call them "limitations and exceptions") in such agreements. So for them to suddenly step up and complain that this one small, narrowly focused agreement is a problem because it "only" focuses on such things, without regards to their "rights holders whose copyrights are at stake" is pretty funny. Why has IPO never been concerned about the rights of the public and users in every other such agreement?

Our main concern about the VIP treaty, as currently drafted, is that it addresses L/Es to
copyrights in isolation, without parallel provisions addressing IP holders’ rights. The
proposed VIP treaty would create specific L/Es to copyright protection, with the aim of
broadening access to print works for the visually impaired. However, it would not
reflect the importance of protecting the copyright of those who created the work.

Okay, so simple question for the IPO folks: in all future agreements that it supports, will it agree to support a "balance" that addresses user rights, rather than focusing on "copyrights in isolation without parallel provisions addressing users rights?"

The idea that the "rights" here are only one way and must be constantly ratcheted up is disingenuous and somewhat sickening. It's this position that has kept the blind community from having access to all sorts of works for decades. And during those decades, folks like IPO have supported all sorts of incredibly one-sided expansions to copyright law without concerns for any public or user rights.

from the ridiculous-copyright-fights dept

The Aereo copyright fight continues. As you may recall, Aereo is a startup that is trying to let people stream free over-the-air broadcasting over the internet. To stay within the framework of copyright law, they've set up the most inefficient system possible, in which each subscriber gets his or her own antenna, connected to a streaming device. From a technical standpoint, this is insane. But, from the legal standpoint, it's required. Aereo won the first round, as the district court refused to grant an injunction. That fight quickly jumped to the appeals court, where Aereo has filed its main brief, which basically says "Cablevison, Cablevision, Cablevision, Cablevision, Cablevision, Cablevision, Cablevision..."

If you don't follow this stuff closely, a few years back, there was a ruling in the same appeals court, that found that Cablevision's remote DVR system was basically legal. As we noted at the time, it was the right decision, though for ridiculously convoluted reasons, which really showed just how ill-prepared copyright law is for modern technology and innovation. That ruling, however, is a key one that Aereo is relying on to argue that its remote streaming system is legal. So its 90+ page filing is basically page after page of Aereo trying to explain why it's just like Cablevision.

For the most part, I find its arguments compelling -- as they also clearly highlight how the broadcasters are basically looking to have a veto on innovations they don't like, and why that doesn't serve the public interest. They highlight that the broadcasters argument seems to be that copyright law is designed to protect them, rather than the public interest. Aereo points out that they're mistaken in this claim.

While Appellants imply that the sole purpose of the Copyright Act is to protect content owners, the Act was instead intended to strike the proper balance between copyright owners, on the one hand, and public access to information on the other.... Congress expressly and deliberately exempted “private” performances from copyright protection. Further, consumers have a right of access to local over-the-air broadcast television. There is no basis in law to confine that use to a home-based antenna or equipment, to fully time-shifted copies (whether on VCR, DVR, or RS-DVR), or to only non-Internet related deployment. Indeed, contrary to what may be the view of certain Appellants and amici, copyright laws were never intended to be used to confine consumers to outdated technology. The reality is that the networks fought VCRs, and they fought remote DVRs, and they lost in both cases. This is simply another attempt to preserve the status quo as a business matter without regard to fundamental copyright principles.

There is, also, a somewhat amusing response to the claims made by the broadcasters that Aereo should be found guilty for doing everything possible to avail itself of the specifics in the Cablevision case. They argue -- as we've seen some commenters on our posts argue -- that Aereo's specific technical decisions show that it was somehow intending to avoid the spirit of the law... by complying with the letter of it. Basically, they're complaining that Aereo may be jumping through a legal loophole they hadn't noticed. However, as Aereo points out, this argument really should work in Aereo's own favor, as the networks are basically admitting, flat out, that Aereo was doing everything it possibly could to live within the confines of the law:

Finally, both Appellants and amici argue that the Aereo technology is an “artifice” or some clever attempt to get around copyright law. Essentially, Appellants are arguing that Aereo carefully designed its system to comply with Cablevision. There is considerable irony in Appellants’ suggestion that Aereo is somehow culpable because it carefully designed its system to comply with copyright law.

Of course, it's interesting to note that one of the amici briefs on the other side came from Cablevision itself. This is a pretty cynical and obnoxious move from Cablevision. Having already won its legal fight that made the remote DVR legal, it knows that Aereo is actually potentially competitive. So rather than cheering another innovator on, following down the road it paved, Cablevision cynically jumps in to protect its turf and pretend that the ruling it fought so hard for doesn't apply to Aereo. I've included Cablevision's ridiculous brief below as well, in which it argues that it has a "direct interest in the proper interpretation" of the decision in its own case. That's hogwash. Cablevision's position here is solely to abuse copyright law and an important decision on its own behalf to now crush a competitor.

Oh, and in checking in on the docket on the case, I should mention that the silly amicus brief we talked about from former Register of Copyrights, Ralph Oman, in which he argued that new technologies should be illegal until Congress gives explicit approval, was amusingly rejected by the court for failing to comply with filing requirements. The court noted that it had given Oman "due notice" and he had not fixed the problems with his filing. However, after this rejection, he was able to refile yesterday...

Either way, this case really seems to be bringing out the crazy, crazy anti-innovation, anti-competition arguments from the pro-copyright crowd.

from the oh-really-now? dept

Last week we wrote about the RIAA's victory against Usenet.com, noting that it really wasn't that big a deal precedent-wise, given the rather specific circumstances involved in the case. Specifically, the company Usenet.com clearly destroyed evidence, which pretty much doomed the case, and on top of that engaged in activity that was egregious in terms of making it quite clear that it encouraged illegal activity through the use of its service. But, of course, the RIAA and its friends (as per usual) are having a field day claiming this is a big deal.

The decision reinforces two basic points: If you mindfully operate an illegal service without compensating the artists and creators whose content you advertise, the law is not on your side. Further, given the abundance of reasonably-priced legal download services, why go to an illegal one?

Not quite on either count. What it actually notes is that if you destroy evidence, you're almost certainly going to lose, and if you choose to outright flaunt the law and encourage people to use your site for illegal purposes, you're probably going to be in trouble too. However, note the neat little lie that the RIAA uses in its words here, calling Usenet.com "an illegal service." That's not accurate at all. Various usenet services have been offered for many, many years and are not illegal. The problem here was that the operators encouraged people to download infringing content. The service itself was not illegal.

Meanwhile Billboard for some reason asked an entertainment industry lawyer with a long history of involvement on the entertainment industry's side on these cases to write up a report about this decision, and it's no surprise that -- while positioned as a news article, rather than an opinion piece -- this same misleading explanation comes through -- again, calling it a "significant win."

Still, there is one part of the ruling (which both articles above cite) that does seem like a major departure from previous case law, which is why I'd be surprised if it's allowed to stand. That's the fact that the judge ruled that Usenet.com wasn't just guilty of contributory infringement, but direct infringement because it maintains an "ongoing relationship" with users. It's hard to see how such a ruling lives on through an appeal. It seems that the judge was heavily influenced by the other two issues -- the destruction of evidence and the egregious encouragement of infringement -- and thus stretched the definition of direct infringement here as well. But if such a ruling is allowed to stand, it basically wipes out the Betamax "substantial non-infringing uses" ruling for any kind of online service, and also seems to go against a number of other recent rulings. That would be a plainly ridiculous interpretation of what the court said in the Betamax ruling, and if the entertainment industry really wants to hang their hat on that, they really ought to look back at the history of what happened to their industry post-Betamax. That's because the technology they fought so hard to kill helped prolong the life of the industry. The same would be true of more efficient means of internet distribution, though they refuse to consider that as a possibility.